*1 Co. Horst Co. E. C. 1918.] New Blue February 27, In No. 2465. 1918.] [Sac. Bank. Ap (a Corporation),

E. COMPANY CLEMENS HORST COMPANY pellant, NEW BLUE POINT MINING al., Respondents et ; February 27, No. 2466.

[Sac. 1918.] Bank. BLUE POINT DURST, Appellant, RALPH H. NEWv. al., Respondents; MINING COMPANY et February 27, No. 2467. [Sac. Bank. Executrix, etc., ROSE Appellant, FRANCES DURST, as al., NEW BLUE POINT COMPANY et MINING Respondents. Bights—“Foreign” Biparian Waters—Bights

Waters and Water augment Owners.—Those who by water of a stream the addition brought of water may sources at their outside the watershed pleasure discontinue such remedy ripa- increment and leave without rian below, owners possession who cannot adverse user or obtain right against corpus easement or those who add to thus the stream. Id.—Bight Against Upper Biparian of Lower Owners.—Where, in an riparian action lower against upper riparian owners owners to a restrain diversion waters, appeared upward half century a waters of the in were stream, question, augmented by had been foreign up sewage waters made city from a mines, and water mills, and other sources, all without the watershed of the stream, and these plaintiff sought enjoin the waters which the the defendant's taking, the defendants had the to invoke the rule that rely upon plaintiffs strength must t'he of their own title and upon the weakness of that of their adversaries. Id.—Bight waters, foreign to Abandoned Waters.-—Since the case, not, such would the course of land of reach the nature, below, may complain being owner that owner deprived producers assignees, thereof of the excess or t'heir stranger appropriated title to their it. Foreign Id.—Bight case Watershed.—In such Waters Outside to Use foreign first secured the abandoned not be those who it, stream, by deprived of the use of even outside of the one claim- riparian proprietor stream. ing as a lower M)n. 632 E. C. Blue Pt. Id.—Judgment—Certainty,—Where found that foreign water in the stream is than never less five hundred inches nor more than one inches, four hundred and that thousand always flow is 1,191 inches, judgment adjudging least exceeding defendants to he foreign entitled t'o all the water not *2 one thousand four enjoining hundred inches and them from quantity open more than that being is not to attack as uncertain. Id.—Judgment—Evidence Record—Findings not in Evi- Justified favoring sustaining dence.—Under the rule than the rather of reversal will be forth judgments, it assumed that evidence set in justifies findings, judgment the record in and that a accord- equity. with ance fairness and Action—County Subject Com- Id.—Jurisdiction Where Action sought to the quiet its title menced.—Where the in plaintiff’s lands Tuba flow of water of a river at the separate name County, tributary fact a had a mere that' creek county part another did not make it less extended plaintiff’s right river, properly trial court found and the that the sought quieted parcel plaintiff’s was a Tuba to be juris- County lands, superior County court' of Tuba so that the ' of article VI of the constitution. of the action under section 5 diction judgment Superior APPEAL from a Court Tuba County. Eugene Judge. P. McDaniel, opinion

The facts are stated in the of the court. Carlin, W. Wiel, Appellants. H. and Samuel Schlesinger, Sheehan, Heggerty, Bert James F. C. J. Knight Heggerty, Nilon, Byron Coleman, F. T. and John Mulroy, Respondents. appeal parts Plaintiffs judgments

MELVIN, J. involving identical three cases the flow of Bear River and tributary, Creek, plaintiffs the lands of in Tuba appeals by stipulation Placer counties. The three governed by based transcript be decision Company “E. entitled Clemens Horst v. New Blue Point Company.” Mining (hereinafter Company

E. Clemens Horst to be known as “appellant”) “plaintiff;” has owned for more than a century of a land quarter to Bear River. The water said comes partly land from tributary of Bear E. C. New Blue Pt. Must. River known as Wolf which has its confluence pre- plaintiff’s Upon the river above land. Wolf Creek maintained a dam. This dam decessors defendants completed large cost, in 1862 and was constructed at predecessors has been maintained defendants or their Heading since. this dam was a ditch some- interest ever twenty-eight “Campbell times known It was as the Ditch.’’ long. miles Two ditch crossed miles its head this tributary Ravine, and no Wolf Creek known as French beyond did,, in said carried French Ravine ditch ever does, can now return or Bear River above to Wolf Creek plaintiff. land Beginning in 1862 two thousand inches of water was car- year ried ditch in the said winter-time each and not re- gravel river, being to either turned the creek or the used quantity mines at Smartsville. A small has been and still distributed in portion such manner that a has been it plaintiff, returned the stream above the land but as controversy there is no over this water will consid- *3 opinion. ered this Winter diversions the ditch mining until continued when at Smartsville outside of the watershed of Bear and stopped River Wolf Creek was injunction. by Between 1883 and no water in winter by was carried ditch said outside watershed. irrigation season, however, In the from 1862 to water irrigating purposes for was along distributed the course of varying eight the ditch amounts from one hundred to hun- water, dred inches of none which was returned at above All plaintiff’s lands. water diverted other the ditch reaching released before French Ravine. In 1901 the crossing down, flume French year Ravine broke and from that no beyond until 1910 water was place. conducted that At all between 1901 and 1910 all times water taken from Wolf Creek by the dam and ditch was returned to the plain- stream above plaintiff’s lands and lands, tiff’s flowed where it was used by plaintiff. history

Upon of the use of the water it was held that years defendants, between the 1901 and had forfeited right any take all of the natural flow of Wolf Creek to any place outside of the watershed of that stream or that of River, right Bear and had never recovered said pre- either scription regard or otherwise. to all of the natural flow New Blue Pt. M'in. Co. B. C. found to plaintiff owner was these as a streams, might rights prior superior which defendants any

have and assert. Ditch, reopened Campbell rebuilt 1909 defendants places began Ravine, across to distribute

flume French beyond of Wolf watershed French Ravine and outside varying in amount Creek and that of Bear River water to two thousand hundred five hundred five .inches. receives, and Wolf Creek It was found the court that received, its century than half in addition to more has flow, coming from its water- natural sources without “foreign “foreign water.” This water” shed and known as Valley and up sewage city Grass made from the city, mines, and mills mills, mines and receiving supply their from a canal leads from Yuba persons privity canal is owned not River. The litigants, parties to this con- them, these “foreign enter troversy. discharges water” All commingle with Campbell dam Wolf Creek above the “foreign water” is stream. Said waters of said the other nor more than one thou- than hundred inches less five never natural flow of Wolf Creek four inches. The sand hundred stage always 1,191 is found to be at least inches. at the lowest para- plaintiff has a further found the court It was right of the water in natural flow to its lands mount River, but that defendants have and Bear Creek “foreign superior all plaintiff all water” at times of Wolf any place within or without the watershed use or Bear Creek River. plaintiff is conclusions of law were that en-

The essential defendants, lands; all of the flow to titled to plaintiff, to use the water” against have inches; hundred exceeding four one thousand injunction restraining defendants from have an *4 “foreign water” from Wolf any the Creek. diverting save law, conclusions judgment which follows the of By the quieted. natural flow is plaintiff to the title of appeal this is the principal question involved fol- The augmented a natural stream is lowing : flow of Where the is, by which, means, without the inter- that artificial stream, would never reach the of human does agency, vention of the benefit owners or flow inure to artificial this E. C. Hobst v. Blue Pt. Min. 19Í8.] merely personalty is it in the of abandoned which nature appropriated by be first who can it person take the stream?

Appellant agrees with that water” is an of Wolf abandoned those increment Creek produce right producers any who it. While of the practice putting time to forsake the into Wolf Creek right conceded, respondents, absence privity producers, appropriate flow said this Appellant is denied. calls to the ease the court’s attention Arkwright Gell, W. In v. 203-226. that case Mees. workings by owners mine had drained their tunnel way which water was in such a that it flowed to plaintiffs operate and was mills. For the used them to purpose drainage securing better owners mine dug deeper dry. tunnel, which to run In caused the other upheld ground creating that this those supply may principle discontinue it. that case seems to point upon appellant respondents agree, the one fit namely, producer of the artificial flow to cease lays furnishing it, appellant great but stress the com- Easements, edition, fourth in Washburn on on the ease ment as page which is follows: important remarked, as circumstance in this “It will be sough dug the second and caused case, the one thereby was interested in the mines drained. diversion merely otherwise, stranger, he been a been Had it lying sough land between the outlet the first of the owner the water entered into the natural place where and the current is stream, would have had no to divert the he deprive of the use mine, so suing enjoyed same, having after it so among all the rest long.” is contended mingled producer, except the world law water follows the usual introduced artificially and watercourses, immaterial as between two claim of the stream. got into the bed the water ants how including Wood cited, of authorities number behalf Adam, 177; Eddy Druley 102 Ill. 748; Waud, 3 Ex. Sweeny, 408]; Schulz v. Am. Dec. Simpson, Rep. 888, 253]; Am. Hollett St. 19 Nev. In the cited last 54 Wash. Davis, 423]. *5 636 E. Hobst Co. New Blue C. Pt. M'in. Co. Cal. [177 v. was spring it held of a that the owner who diverts its waters into an lapse artificial channel after the not, period of limitations, of statute return the to their injury riparian to of channel a lower owner on long been dis which has watercourse the water charged. upon estoppel The case was decided the doctrine of and has The other cases little value here. were determined Eddy authority of law. decisions under the common Simpson, cited, authority the Californian effect producers of water not re who abandoned it could discharged it from if take the stream which it had been into doing they prevented application so its lands riparian making lower owners who had use been beneficial Stone, it; 46, 7 but in man v. this doctrine was Hoff ruling made, consistently fol modified and a been has appropriator may since, lowed ever that an use a natural process conducting appro watercourse as place storage. priated In that case was fluid it held belonged only the natural water. in the to the might appropriator, and first artificial re who had into taken those the watercourse. leading Walkinshaw, case of Katz v. And 141 Cal. 116- 663, Rep. 35, L. R. 74 64 A. 70 Pac. Am. St. 766], Eddy Simpson during was cited the discussion of the brought deviations the common law which have been physical by local necessities dif about and the and climatic England Very early ferences between and California. irrigation history began in California this court to draw recognized between distinctions under the appropriation common law and the law of which was called necessity, following law custom rather than fixed condi Wheeler, tions. Miller Wash. L. R. A. (N. S.) 1065, 641], 103 Pac. this difference is discussed and listed, many citing cases special approval quoting from Canal & Ditch Vaughn, Butte Co. v. original Am. Dec. wherein the again discharge appropriator of water take it after into Eddy denied in the alien watercourse—a Simpson—is again unnecessary, however, declared. It is phase prolong ap of the ease, the discussion because that, authorities, pellant people admits under brought sources outside of put watershed E. Hobst v. Blue might in- pleasure into Wolf Creek discontinue their crement, remedy. leaving appellant without

If, right by then, appellant can obtain no easement Valley possession against people adverse Grass user corpitó how, respondents, who add to the ask the stream, *6 plaintiff can present maintain estab the action without first lishing can find no a use of water? We the that, satisfactory appel will with question to this fit answer property Respondents lant’s rule of contentions. invoke the plaintiff strength rely upon of its own title must the (Cit adversaries. and not of that its the weakness ing Sespe Bacigalupi, 167 Cal. Little Consolidated Oil Co. v. logic 802].) escape from 381, see no Pac. We can [139 application of the rule so invoked to the conditions and presented our here for consideration. riparian

A owner has a usufruct of the nat to the stream, ural appropriator water of the waters but artificially corpus added a taker of the that which exists jealous only by virtue its abandonment. So economy courts of been for have the this state the use apportionment precious fair of the fluid water and purposes, refused restrain beneficial have nonriparian appropriator, of water suit diversion riparian owner, of a lower when amount diverted would greatly person be used the latter but would benefit the (San Joaquin Kings River Canal diverting & Co. it. Irr. 626, (N. Co., S.) & Irr. 158 L. Fresno Flume Cal. R. A. [35 832, ; 112 Pac. Modoc Booth, Land & Livestock Co. v. 182] 151, 102 431]; Spring Valley Pac. Water Cal. [36 Fifield 1054].) Works, Cal. Corning Gallatin v. Co., Irr. Cas. [Ann. discussing 1914A, 74, 864], the court was situation irriga- proposed purposes in which defendant to divert nonriparian on lands tion carried a stream Injunction against during periods of unusual flood. defend- demanded was refused when plaintiffs, ants were ground riparian proprietors, that the lower wrought present damage plain- no waters to said the flood applicable prob- decisions After a review the tiffs. following language court, lem was used in before the decision:

638 E. C. Horst Co. New Blue Pt. Min. just rule that flood

“These in effect decisions establish riparian waters no to the which are of substantial benefit by him, may be taken land, owner or not used to his lawfully gain by any will access person' who can beyond stream, riparian, and even conducted lands riparian watershed, owner and without the of the consent They of the compensation without to him. are not land, ‘parcel’ his flow the stream constitutes rights.” meaning within the law Canada Water Cohen La Land & Co., sought (N. S.) plaintiff R.L. A. 91 Pac. away diverting carrying to restrain defendants from developed from which certain waters tunnels on lands springs. had conducted of certain the flow developed would found that not such springs, way to under natural conditions find their thereby avail supply made that, except tunnels, the for the gone percolation outside of the watershed would able have Among plaintiff’s land was located. of the stream on which circumstances, things court said: “Under these other *7 which developed by were not waters the waters the tunnels any supported or or affected would have trended toward by any springs appellant, the in stream land of nor interest, any or which to the waters of claim or she she injured adjoining proprietor appro not as an an or as priator, complain upon ap and hence could or not insist the plication prevent of the rule in the cases cited announced developed respondents any such the waters^ might For au which them. lands to see fit to conduct proposition McCue, cite Hansen v. thority sustaining we 111 Rep. Eaton, Gould 299], Cal. 306, 42 Am. Cal. [10 , Montecito Rep. 201, 44 etc. 639, Am. Pac. and St. 319] [52 585, Barbara, 144 Cal. Co. v. Santa Pac. [77 1113].” may surplus be said present in that as the So the appellant’s in of nature waters would not the course reach may complain deprived land, corporation being not producers excess, their thereof either of the as- stranger signees, appropriated or to their title proper purposes. abandoned excess Respondents App. Dannenbrink Burger, 587, cite supporting their contention that 751], Pac. where has conducted into a other than that been 639 Blue Pt. Min. E. Horst abandoned, which it was taken and has been may enjoy therein which are in the nature of those one personalty, appropriator being corpus entitled to the opin- thereof rather than usufruct. The discussion supports ion in respondents, for that case the contention of language settled following used: “It there well leaking escaping where water from- an artificial water- goes flowing promiscuously course to waste over other way lands or finds its some other stream than the one watercourse, which person it is diverted into such artificial corpus appropriating merely takes and water thus having case, the usufruct therein. In such usufruc- tuary right in such water, the owner such ditch or artifi- liberty change cial is at watercourse time to or alter invading any appropriator, it without vested of the even though change of such effect or alteration must inevi- tably depriving escap- appropriator result ing from such appropriated watercourse and he has used, perhaps long period As is said in time. 42 Hansen v. McCue, Rep. 299], ap- Am. proved in Katz Walkinshaw, Am. St. Rep. 35, 64 R. A. L. the owner of an artificial watercourse is not bound to maintain the arti- ficial stream for the benefit of appropriated those who have escaping words, therefrom. ... other the appro- priator merely secures corpus escaping water thus personalty, but does thereby acquire secure or right to the continuous flow such water.”

We are convinced equal footing water, reference that the ones who first deprived secured it not be of the use even outside the watershed of Wolf it, corporation person claiming ripa as a lower rian proprietor disposes Bear princi This River. *8 question pal herein, involved and our determination of this matter opinion Cotton, is not altered in Schwann v. ^[1916] Ch. dealing a controversy between ripa proprietors jurisdiction rian in a in which of appro our law priation application. of waters has no The case Davis v. Gale, behalf, Am. also this Dec. cited in is of here, points little value us because the decided so controversy. different those involved this That '

640 E. New Blue claiming was a appropriators, priority, suit between each controversy party. not a upon riparian based of either Appellant judgment upon ground attacks it is not definite. That the water” amount of varies greatly year periods during at different is found. Its (one maximum inches) thousand four and mini- hundred (five inches) findings, mum hundred it is are fixed but argued that as the amount of added water is the flow the constant, be, impossible never and never will it is to tell when going beyond are appropriation of the added taking water and the natural The effect flow. says year judgment, whole appellant, is restrict it over the be in the minimum flow water found to of natural argued judg- stream at that the the end of the season. just ment is for uncer- uncertain as that found erroneous 235-243, tainty Lawson, in Watson v. judgment shows, An however, examination of the said 961]. specific that it is much more than the one described found cited case. that case had been defendants be entitled to “sufficient water superior they irrigation proper so of much their several lands irrigated have heretofore with such water.” As there nothing irrigated previously to show number of acres irrigation require, nor the amount of water would judgment hopelessly indefinite. In the case at was of course adjudged “for- bar to be to all of the defendants entitled eign exceeding water” not four hundred one thousand inches enjoined quantity. and are more Con- than versely stated, the court forbade defendants to take more 1,191 of the water from inches would leave than judicially which had been determined to be the quantity minimum of natural water at the intake sustaining which favors the their ditch. Under the rule judgments, we must rather than the reversal assume that justifies (which record) is not set forth the evidence findings judgment in accordance with and that said equity. fairness and respondents question jurisdiction

Certain try should have been court to this case contend judgment section 5 of of dismissal under article awarded This, they say, VI of constitution of California. is an and its tribu- quiet of Bear River action to title to the waters *9 E. Horst Co. C. Blue v. New taries, including Wolf stream is en and as latter tirely county su within assert Nevada, perior jurisdiction county in and for alone had the said plaintiff’s to entertain such a suit. court found that The right sought quieted Tuba part parcel “a of its to be was County properly The was commenced and lands.” action County. (Miller tried in Tuba & Lux v. Madera Canal (N. Co., 59-73, S.) 391, Irr. 155 Cal. L. R A. 99 Pac. 502]; Haggin, 255-391, Lux 10 Pac. 674].) Plaintiff seeking quiet to the natural flow Bear River at County. its lands Tuba The mere fact that Wolf a separate Creek has name and extends county another does not make it less a of Bear (Porters Dredging River. Bar Beaudry, 15 App. Co. v. 751-765, 951].) follows judgment entitled

of dismissal. parts judgments

The appeals from which are taken are affirmed. J., E'. Shaw, J., pro Victor

Shaw, tem., J., Sloss, Wilbur, J., Angellotti, J., concurred. denying rehearing the court in Bank filed the follow- ing opinion on March 1918: petition

THE COURT. rehearing The is denied. The court does not opinion deciding construe the herein as question as to what acquired in so-called waters” appropriators, by prescrip- between presents tion. The record these eases controversy be- plaintiffs claiming question tween the the waters solely riparian ownership of their lower virtue of the banks Bear River, tributary, of which Creek is a and the defend- claiming foreign ants to divert the waters Wolf of their appropriation Creek virtue application same to beneficial uses. Oal.—il

OLXXVII